Tuesday, March 18, 2014

Court’s Consideration of Rehabilitation Needs as a Secondary Factor Permissible under Tapia

The panel affirms a 24-month imprisonment followed by a
24-month order of supervised release for Walker, who violated conditions of an
earlier sentence of supervised release, in spite of Walker’s appeal claiming
that the sentencing court improperly considered his rehabilitative needs in
violation of 18 U.S.C. § 3582(a). SeeUnited States v. Garza, 706 F.3d 655 (5th Cir. 2013).

Since Walker did not object to the district court’s reliance
on rehabilitation as a sentencing factor, the panel applies the “plain error”
standard of review and affirms the sentencing court’s order. The panel upholds
its previous interpretation of Tapia, where a consideration of the need
for rehabilitation as a “secondary concern” or “additional justification” for a
sentence is permissible, unless a defendant’s rehabilitative needs are a “dominant
factor” informing the district court’s sentencing decision.

The panel distinguishes the instant case from Garza,
where the district court focused “almost exclusively on rehabilitation in
crafting” the defendant’s sentence of 24-months imprisonment so that the defendant
could enter an appropriate treatment program. There the court stated that
defendant should at least be afforded an opportunity to engage in a residential
institution drug treatment program after discussing on the record various drug
treatment programs available under different sentences. The court made no
additional justifications for the sentence imposed.

In the instant case, while the district court took
rehabilitation into account (“I think if you have a longer period of time in
prison to think about [sic] and perhaps get some counseling...”), that concern
was not a dominant factor. Instead, the court only referred to rehabilitation
after detailing factors under 18 U.S.C. § 3553(a) that took into account Walker’s
multiple violations of supervised release after being given a relatively
lenient sentence.

NM Aggravated Assault with Deadly Weapon Is § 2L1.2 COV because No Realistic Probability of Prosecution for Least Culpable Act Argued on Appeal

Carrasco-Tercero loses his argument that his 1985 New Mexico
Aggravated Assault with Deadly Weapon conviction is not a U.S.S.G. § 2L1.2 crime of violence
because the panel finds no realistic probability that New Mexico would
prosecute someone of the least culpable act criminalized under NMSA § 30-3-2. The statute defines assault as attempting to
commit a battery upon a person; “any unlawful act, threat or menacing conduct
which causes another person to reasonably believe that he is in danger of receiving
an immediate battery”; or “use of insulting language toward another.”Carrasco-Tercero argues that the least
culpable act under § 30-3-2 would be using insulting language toward another while
holding a deadly weapon and that such a crime would not be a crime of violence
under the elements clause (because no element of use of force) or under the
enumerated offense of aggravated assault (because broader than the generic definition
of aggravated assault).

The panel acknowledges that the statute allows for such
prosecution, but declines to reach Carrasco-Tercero’s conclusion—and the
conclusion reached by the Sixth Circuit in United
States v. Rede-Mendez, 680 F.3d 552 (6th Cir. 2012)—that § 30-3-2 is not
categorically a crime of violence since the panel finds there is no “realistic
probability” that someone would be prosecuted for that least culpable act.Carrasco-Tercero did not point to any
examples of someone being prosecuted in New Mexico for aggravated assault with
a deadly weapon because he was yelling insults while holding a deadly weapon,
and the New Mexico’s uniform jury instructions do not provide instructions for
the charge of aggravated assault based on using insulting language.

Since Carrasco-Tercero’s sole contention on appeal concerns
the “insulting language” arguments, the panel affirms the judgment.The panel does not consider whether the
alternate means of committing aggravated assault under § 30-3-2 would
constitute a crime of violence.So,
there may still be valid arguments against § 30-3-2 being a crime of violence
under different theories.

Thursday, March 13, 2014

Start incorporating the proposed 2-level decrease into your
variance arguments now.If that proposed
amendment becomes official (which it looks like it will), it won’t be official
until November 2014.However, Attorney
General Eric Holder voiced his support for the proposed decrease today in his
testimony before the U.S. Sentencing Commission, and he also indicated that
assistant U.S. attorneys will not oppose variance requests that ask the Court
to vary downward in light of the proposed change.

The Commission is accepting comment until March 18, 2014, on
its proposed amendments to the Guidelines.

No Knowledge that Meth Was Imported Necessary to Get +2 Pursuant to § 2D1.1(b)(5) for Offense that “Involved the Importation of” Meth

In a two-page opinion, the panel holds the two-level enhancement
for an offense that involved the importation of meth, U.S.S.G. § 2D1.1(b)(5),
applies under a strict liability theory.Even if the defendant did not know the meth was imported or was not
personally involved in the importation, the enhancement applies as long as meth
in question was imported.

Here, it was sufficient that “the methamphetamine Foulks
possessed was imported from Mexico.”In United States v. Serfass, “the enhancement
applied to a defendant who possessed and distributed imported methamphetamine,
even absent any showing that he knew it was imported” and even though he was at
least one transaction removed from the importation.684
F.3d 548, 550 (5th Cir.), cert. denied,
133 S. Ct. 623 (2012).In United States v. Rodriguez, the Fifth
Circuit concluded that the enhancement applied because of the defendant’s “proximity,
familiarity, and repeated business with the importers justifie[d] the enhancement.666 F.3d 944, 946-47 (5th Cir. 2012).The Foulks
panel clarifies that Rodriguez
did not hold that those factors were required, and that the enhancement applies
even where proximity, familiarity, and repeated business do not justify the
enhancement.

So, for now, the enhancement will apply whenever the
Government can prove the meth in question was imported.Of course, that does not mean that the
application results in a reasonable sentence or that the enhancement itself is
sound.

Thursday, March 06, 2014

Unreasonable Supervised Release Condition for SORNA Offender Vacated

Salazar violated the terms of his supervised release
for a suspended sentence for his conviction of third-degree sexual abuse when
he failed to register as a sex offender, and he was sentenced to a prison term
and an additional period of supervised release with numerous special
conditions.The panel holds that “the
district court abused its discretion by imposing the challenged condition”—to
refrain from purchasing, possessing, or using any sexually stimulating or sexually
oriented materials—“on Salazar without demonstrating that it is reasonably
related to the statutory factors.”

At the sentencing, the district court added new
conditions to Salazar’s supervised release.The defense counsel objected to the new conditions because “they’re
overly burdensome and . . . .”Before
the defense counsel could finish her sentence, the court overruled the
objection.Again, defense counsel
attempted to elaborate on her objection, and the court cut her off with another
“Overruled.”The panel holds that
Salazar properly preserved his objection and applies abuse of discretion review
because Salazar’s attempts to object with specificity “were futile because the
court failed to give his counsel a reasonable opportunity to explain her
objections or ask for the rationale behind the court’s refusal to sustain
them.”

As to the merits, the panel agrees with Salazar that
the challenged condition is not reasonably related to the statutory supervised
release factors since there is no indication that sexually-stimulating or
sexually-oriented materials contributed either to his sexual abuse or SORNA
offense.The panel vacates and remands
for the district court to either remove the condition or attempt to explain its
applicability.The panel does not reach
Salazar’s argument that the condition was overbroad and violates his First
Amendment rights.So, keep on objecting to unreasonable terms of supervised release. You might just end up getting them vacated!